“An Open Letter to Senator Robert C. Byrd”

It is with considerable dismay that I have read reports listing you as one of the few Democratic senators who will support Samuel Alito’s elevation to the Supreme Court.

Over the past five years, you have been one of the most clear-sighted and courageous men in public life. Time after time you have risen in the Senate to raise objections to the course of this administration, objections based not on politics but on a keen sense of the history of this country and an unparalleled love and knowledge of our Constitution.

So I am simply at a loss to understand your willingness to support the Alito nomination. By most accounts, Judge Alito is a polite, hard-working, and decent man. But polite, hard-working, and decent men can be so wrong in their approach to Constitutional issues that they threaten the very nature of our republic. And Judge Alito seems to be just such a man.

I have read your book Losing America. In fact, it is in the small stack of books I keep by my bedside to turn to during restless nights. In that book you excoriate “a reckless and arrogant presidency.” I do not think Judge Alito is personally arrogant, but every pronouncement and indication we have is that he is willing to dramatically alter the balance of power between the branches of government, exalting the executive branch at the expense of the legislative in particular. Ultimately, that is the most reckless approach toward our government one can imagine.

With Judge Alito’s endorsement of the unitary executive theory, he strengthens, emboldens, and legitimizes just that arrogance you have decried. The unitary executive theory runs counter to everything you believe and have fought for. I genuinely cannot understand, then; how can you support Judge Alito’s nomination?

If this theory were to be implemented, the power of Congress to create independent agencies and counsels would immediately disappear. As the Senate’s foremost Constitutional scholar, I thought you would be zealous in defending these Congressional prerogatives, not supporting someone whose ultimate intent is to destroy them.

Judge Alito also takes a genuinely radical approach toward presidential 'signing statements.' His position has been that the President's interpretation of legislation matters as much as the will of Congress' in determining legislative intent. If that is to be the case, then Congress might as well nail its doors shut. And again, knowing how much you love the Senate, and how zealous you have been in trying to preserve Congressional power against executive overreaching, I cannot understand how you can support Judge Alito’s nomination.

Some have argued that the Senate has too much other important work to do to squander any more time in discussing or filibustering Judge Alito’s nomination. That is such a shortsighted approach toward a lifetime appointment, where he will deal year after year with bedrock principles of our nation, that the argument seems almost intentionally specious, an excuse for hurrying past a shameful act.

You were one of a small bipartisan group that earlier preserved the right to filibuster by crafting a careful compromise. It may be that you fear a filibuster will tempt Senator Frist to employ the ‘nuclear option’ which he threatened before. But if the price of maintaining the filibuster in theory is that one cannot use it in practice, then one has sold his soul for a mess of pottage.

I share your heartfelt concern that we are “losing America.” I think the elevation of Judge Alito would be a giant step toward making that loss permanent and irretrievable. I hope that, after further consideration of the Constitutional issues involved, you will reconsider your endorsement, and oppose his nomination.